Tuesday, December 31, 2013

A few months ago, I wrote about how The Sixth Circuit is a Sentencing Court in cases involving the possession of child pornography. In addition to the unfortunate case of Richard Bistline, I catalogued several examples of Sixth Circuit panels requiring that this crime be punished by a prison sentence, even though Congress itself saw fit to impose no mandatory minimum, and in spite of several district courts’ well-reasoned decisions to impose non-prison sentences.

In truth, however, no judge—whether on a district or appellate court—has as much power to sentence a criminal as the federal prosecutor who charged him. In most cases, real federal sentencing takes place before a grand jury has even returned an indictment.

The prosecutors who charged Richard Bistline faced a critical choice at the beginning of their prosecution: they could charge him with "possession" of child pornography in violation of 18 U.S.C. § 2252A(a)(5)(B), or they could charge him with "receipt" of child pornography in violation of 18 U.S.C. § 2252(a)(2). These two crimes prohibit "virtually identical conduct," since there is "no principled distinction between possessing and receiving child pornography." United States v. Robinson, 669 F.3d 767, 776 n.2 (6th Cir. 2012). The only meaningful difference between them is the punishment. Whereas "possession" carries no mandatory minimum, "receipt" requires a five year prison sentence. Federal prosecutors wield virtually unreviewable discretion to say who must go to prison for five years, regardless of what any judge might later think about the appropriateness of a prison sentence.

In the Bistline case, the prosecutors charged possession—perhaps because of the same mitigating factors that ultimately led Judge Graham to impose a non-prison sentence, including old age, frailty, and low risk of re-offending. Because of that charging decision, Mr. Bistline was allowed to ask for a non-prison sentence (and receive one, twice, until the Sixth Circuit intervened).

At the "chronological age" of twenty, Dylan Marshall was arrested and charged with receipt, rather than possession, of child pornography. It is not clear why. From his Sixth Circuit brief (record citations omitted):

Dylan was born with Human Growth Hormone Deficiency (HGHD), an extremely rare condition that puts his case in a distinct context. During the Sentencing Hearing . . . , a clinical psychologist who evaluated Dylan[] emphasized the "unique situation here" when he testified, "I had never, in the 5,000 forensic evaluations I’ve done, had an individual who had human growth hormone deficiency." Because of this rare disorder, Dylan was literally unable to grow up. In all meaningful ways—physically, psychologically, socially, and sexually—Dylan was a juvenile when he possessed or received child pornography.

Regarding his cognitive development, the district court found Dylan "had the mental capacity of a minor both at the time the crime was committed and at the time of sentencing." [The] clinical psychologist who evaluated Dylan[] found that he had . . . a mental age of fifteen and a half years. . . . A licensed clinical supervisor, Maralyn Logsdon, observed that Dylan had "multiple psychological" disorders, including "a dysthymic disorder and a personality disorder." These psychological conditions went untreated prior to Dylan’s arrest. . . .

Because of this extreme social isolation and his late entry into puberty, Dylan has had little sexual experience. One of his few sexual experiences was abuse by an older male cousin. Dylan was anally raped on five or six occasions when he was twelve years old. Dylan had not received mental health treatment for this abuse prior to this case.

Dylan pled as charged to receipt of child pornography and was sentenced accordingly. To the prosecutor who charged him, this probably looked like justice. But to Jack Zouhary, the district judge who had the unenviable (and purely ministerial) task of imposing the prosecutor’s chosen sentence, it looked like nothing of the sort.

After conducting two separate sentencing hearings, hearing live testimony, and allowing the development of a full record, Judge Zouhary found that the "uncontroverted evidence" demonstrates that "at the time of the crime Defendant was, and should be characterized for sentencing as, a developmentally immature teenager lacking the ability to appreciate the illegality of child pornography and to control his viewing of easily accessible internet content."

Given these extraordinary circumstances, Judge Zouhary found that a sentence of five years would be "excessive, unjust, and greater than necessary." He explained that the "imposition of excessive prison time will only destroy an opportunity for [Dylan] to live a constructive life," particularly given the safety concerns facing somebody like Dylan in an adult prison.

But his hands were tied. The prosecutor had already sentenced Dylan to five years in prison. Judge Zouhary had no choice but to impose a sentence that he firmly believed to be unlawful. In doing so, however, he literally begged the Sixth Circuit to step in and fix this injustice:

It is my hope that I will get relief from the Court of Appeals. It will not be me that is unable to sleep at night because this defendant must serve five years. It will have to be because three other people or more have reviewed this case and found that to be so. . . . I want to thank everyone for their efforts in what has been probably the most difficult case I’ve had to handle since being on the bench.

Dylan Marshall would get no such relief. The Sixth Circuit predictably rejected his as-applied challenge to the five-year mandatory minimum based on the Eighth Amendment and Miller v. Alabama, 132 S. Ct. 2455 (2012), which prohibits mandatory life sentences for juveniles. As Judge McKeague explained for the majority, the Eighth Amendment analysis draws a bright line at the chronological age of eighteen:

Marshall is at the very most an immature adult. An immature adult is not a juvenile. Regardless of the source of the immaturity, an immature adult is still an adult. Because Marshall is not a juvenile, he does not qualify for the Eighth Amendment protections accorded to juveniles.

Judge Lawson disagreed with the majority’s refusal to allow the consideration of any "developmental features" which might render somebody a juvenile for Eighth Amendment purposes. But he ultimately concurred in the judgment because the five-year sentence was not "grossly disproportionate to the crime."

While that could have been the end of the case, Judge Lawson took the opportunity to say more—about the prosecutor. And thank God somebody finally did.

A district judge himself, Judge Lawson agreed with the Judge Zouhary’s finding that Dylan’s sentence is "excessive," "unjust," and "almost certainly [] greater than necessary to achieve any rational sentencing objectives."

He said that this case is an "injustice" because of "the government’s decision to charge . . . receipt rather than possession," a decision which was "woefully uninformed and even irresponsible."

In spite of these grievances, however, Judge Lawson acknowledged that "defendants like Dylan Marshall are out of luck." In our system of mandatory minimum sentencing, federal prosecutors’ unfettered charging discretion amounts to unfettered sentencing discretion. Justice be damned.

Kudos to Judge Zouhary and Judge Lawson for speaking up about this injustice, particularly given their acknowledged inability to do anything at all to fix it.

And shame on the Government for its inexplicable handling of this case—from its "irresponsible" charging decision to its failure to correct the error after the scope of Dylan's rare condition became clear.

But the Government (and only the Government) can still make things right. In the new year, I hope the United States Attorney for the Northern District of Ohio will remember his oath to seek justice. I hope he will fix this case.

Thursday, December 05, 2013

* Restoring fairness and enforcing a "no-change" sentencing policy based on "finality" are incongruous. Congress intended to remedy irrationality and disproportion. Court is thwarting this effort.
* Cites NACDL and NAACP amicus briefs.
* "Practically all observers" now recognize the ills of the old system.

Judge Cole's dissent:

* Applying 100-to-1 ratio and mandatory minimums to deny 3582(c)(2) relief violates equal-protection principles.
* African-Americans treated more harshly than Caucasian offenders under this regime. And 88% of the inmates that would be eligible for a reduction if mand mins not a bar are African-American.
* Claim of "finality" cannot withstand even rational-basis scrutiny under equal-protection principles.
* "Finality " not a bar to other 3582(c)(2) resentencings. Irrational to allow sentence to be lowered in one case and not the other. . . .
* Quotes Judge Nathaniel Jones: "As judges, we should no longer remain wedded to that which experience shows is neither rational nor fair."

Judge Clay's dissent:

* Majority is furthering prior injustice by holding that the FSA is not retro. Individuals like Blewetts will continue to be imprisoned "in a disproportionate, unjustified manner, in violation of their rights under the Equal Protection Clause."
* Not sure of procedural mechanism for relief.
* "Although the FSA is not facially discriminatory, an interpretation of the FSA foreclosing the retroactive application of its new mandatory minimums would present an equal protection problem inasmuch as it would subject a group that is overwhelmingly predominately African American to starkly different treatment under the law. Such an interpretation can meet neither strict scrutiny nor rational basis review and should therefore be avoided by this Court."
* "Adopting new mandatory minimums for the purpose of righting the racially discriminatory wrongs of the past and not extending the benefits of the new enactment to the thousands of predominately African American individuals serving disproportionate sentences under a now-rejected statue violates equal protection because Congress has recognized and reaffirmed 'its adverse effects' upon the African American community."
* Congress has distinguished crack and powder offenders, "the former being overwhelmingly impoverished African Americans." This group---crack offenders---is exceedingly "abject, disparaged, powerless," a minority group that may be the most powerless. Here the democratic process "breaks down" and "traditional rational basis review is insufficient to protect the group of individuals convicted under federal crack cocaine mandatory minimums." More than 82% of this group is African-American (2005 stat). The courts should not defer "to government enactments under circumstances where an irrational classification based on the form of cocaine, which has real-world consequences in terms of sentencing disparities, tracks so closely with race." No legitimate penological/pharmacological reason for the continued incarceration of inmates who were subjected to extended sentences under the repudiated 100-to-1 ratio. In the face of a "more rigorous rational basis standard, the government can only offer finality as its legitimate interest in support of the continued application of the old mandatory minimums." Won't cut it.

Judge Rogers's dissent:

* Finds that "Dorsey supports the idea that, when a post-Fair Sentencing Act sentence is properly calculated under 3582(c)(2) because a guideline has been retroactively changed, the new statutory minimums should be applied as well. In other words, when a post-Fair Sentencing Act sentencing court properly has before it the calculation of a sentence, the court should use the Fair Sentencing Act minimums."
* Majority's analysis is anomalous.
* With Dorsey in view, not logical to rely on saving statute's default rule.
* 3582(c)(2) = Congress's "background principle of retroactivity."
* Illogical to provide GL relief and not statutory relief.
* Cites argument re. "worse guys" who were sentenced above GLs getting break while less culpable guys (sentenced at mand min) not getting break.
* "It may be that the Supreme Court Justices and litigants in Dorsey assumed that the 18-1 minimums could not be applied whenever sentencing occurred prior to the Fair Sentencing Act's passage. But assumptions are not law. Likewise the holdings of other circuits, and of our prior three-judge panels, are not binding, however persuasive they may or may not be. The plain fact is that the language of the Fair Sentencing Act does not require the anomaly that the 18-1 ratio applies retroactively to reduce guideline-driven sentences but not mandatory minimum-driven sentences, when both the guidelines and the minimums were reduced by the Fair Sentencing Act."
* Somewhat distinguishes the adverse law in other circuits. (Footnote 1.)
* "This analysis does not mean that the Sentencing Commission is trumping the statute. The revised statutory minimums are, after all, created by statute. The Sentencing Commission, acting properly under 28 U.S.C. 994(u), made the Fair Sentencing Act-driven guidelines retroactive. Doing so provided the statutory key to making the statutory minimum changes applicable under 3582. This is a reasonable statutory interpretation, and it is particularly reasonable to avoid an incoherent anomaly."
* Does agree with majority that constitutional avoidance doesn't apply. Judge White's dissent:

* She concurs in Judge Rogers's dissent and writes "separately to express the view that the fair implication of the Fair Sentencing Act is that Congress intended that the Sentencing Commission determine whether and to what extent the newly enacted increased base-cocaine quantity thresholds for triggering mandatory minimum sentences would be applicable to defendants already under sentence. Further, allowing application of the new 18:1 ratio to all offenders already under sentence except those whose sentences under the new ratio would clash with the old 100:1 ratio's mandatory minimum sentences bears no rational relation to any identified Congressional purpose."
* "It is the majority that turns the Fair Sentencing Act on its head by its rigid adherence to the general savings statute in the face of the Commission's clear authority to establish the new guidelines based on the greater mandatory-minimum thresholds and to decide whether and to what extent the new thresholds should be applied to prisoners under sentence."* She addresses several arguments regarding the Commission's powers.
* "The Blewetts's claim does not rest on an asserted constitutional right to the retroactive application of the Fair Sentencing Act. It rests on the irrationality of allowing its application to all sentences that have become final and are affected by the new guidelines except sentences based on the very mandatory minimum levels that the Fair Sentencing Act amended. Congress did not intend this irrationality, and that is why Judge Rogers is correct. Nevertheless, if Congress is understood to have the intent ascribed to it by the majority, that intent is irrational and violates the Equal Protection Clause absent rational justification other than finality."

The COA framed the issue: "whether the changes created by the [Fair Sentencing] Act apply to defendants sentenced five years before the new law took effect."

Conclusion: "Consistent with a 142-year-old congressional presumption against applying reductions in criminal penalties to those already sentenced, 1 U.S.C. 109, consistent with the views of all nine Justices and all the litigants in Dorsey v. United States, 132 S. Ct. 2321, 2332 (2012), consistent with the decision of every other court of appeals in the country, and consistent with dozens of our own decisions, we hold that the Act does not retroactively undo final sentences.

As one defendant's custodial sentence has wrapped up and he's now on supervised release, the gov had moved the COA to dismiss his appeal as moot. The COA found no need to address this issue, as there was no doubt about jurisdiction over at least one of the defendants in the consolidated appeal.

*The FSA does not apply to those sentenced pre-FSA.
* 3582(c)(2) doesn't get around this prohibition.
* The Constitution can't help either.

Points of interest:
* One can only get around 1 USC 109 if the statute expressly addresses it or clearly implies overcoming it. Not present in FSA, which is "forward looking."
* Distinguishes Dorsey.
* All the federal courts of appeals have held the FSA does not apply to those sentenced before the FSA went into effect.
* 3582(c)(2) does not help: these proceedings are not plenary resentencings.
* Sentencing Commission has said that the amendments apply only to the GLs and do not affect statutory provisions.
* Equal-protection and cruel-and-unusual arguments under the Constitution fail. No racially discriminatory purpose, so disproportionate effect allowed to stand.
* Gov "has a powerful interest in avoiding the disruption of final sentences."
* 8th Am "is not a ratchet that makes a harsher system of penalties unconstitutional the moment a more lenient one is (prospectively) adopted." Such a holding might actually discourage lawmakers from lowering sentences.
* The courts simply lack the authority to lower the sentences here, even if there are policy arguments in favor of lower sentences.
* Many believe "Congress should think seriously about making the new minimums retroactive."

Judge Moore's Concurrence:
* Agrees with majority's judgment, but has reservations.
* Sees issues with jurisdiction (the one defendant is now on supervised release). No "hypothetical jurisdiction" (assuming jurisdiction b/c the ct can easily boot the case on the merits). Nevertheless, she would deny the gov's motion to dismiss. Term of supervised release could be reduced if appeal determined favorably, so appeal not moot.
* 1 USC 109 governs: no retroactivity.
* Because of limits to 3582(c)(2), constitutionality of sentences not before COA, but challenge under 2255 could/should succeed. Crack-powder disparity = racial disparity. And no state treats crack and powder so disproportionately as the federal gov did pre-FSA, so 8th Am problem now.